Petition for Writ of Certiorari — Paar v. Finnerty

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FILED

No. JUN 29 1984

IN THE capa = STEVAS.

SUPREME COURT OF THE UNITED STATES

October Term, 1983

WILLIAM M. PAAR, Petitioner

Vv.

JOHN P. FINNERTY, SHERIFF and

ROBERT ABRAMS, NEW YORK STATE

ATTORNEY GENERAL, Respondents

PETITION FOR A WRIT OF CERTIORARI TO

"HE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

QUESTION PRESENTED FOR REVIEW

Whether the Second Circuit's denial

of a Certificate of Probable Cause meets

the sufficiency requirement of Civil

Rule 52(b) if the Respondents have failed

to answer an Order to Show Cause as

required by Rule 5 of Rules Governing

Section 2254 Cases in the United States

District Courts.

ii

TABLE OF CONTENTS

CMETRON BOSOM. csi scececcccces

mp oS a” SPP eerT ree eee

Statutory Provisions

i PTT CC CLE TEE Eee

Reason for Granting

eS

Appendix

1ii

TASLE OF AUTHORITIES

Case Page

Graver Tank and Mfg. Co.

v. Linde Air Prods. Co.

(1949) 336 U.S. 271, 275,

69 S. Ct. 535, 93 L. ed 672 13

Court Rules

Rule 52(b) of the Federal

Rules of Civil Procedure 3,12

Rule 4, Rules Governing

Section 2254 Cases in the

United States District

Courts 4,8,9

Rule 5, Rules Governing

Section 2254 Cases in the

United States District

Courts 4,19

Advisory Committee Notes

Note to Section 2254, Rule 4 3

or

b-

UI

Note to Section 2254, R

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

William M. Paar, Petitioner

Vv.

John P. Finnerty, Sheriff,

Suffolk County, Robert Abrams,

New York State Attorney General

and Martin Bradley, Suffolk

County Attorney,

Respondents.

PETITION FOR A WRIT OF CERTIORARI ‘7O

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, William M. Paar,

respectfully urges that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the Second Circuit rendered on

March 1, 1984.

OPINION BELOW

_ The decision of the United States

Court of Appeals for the Second Circuit

is attached as part of the appendix

(App. 1A ) affirming the refusal of

the United States District Court for

the Eastern District of New York to

issue a certificate of probable case

(App. 2 ) so William M. Paar could

appeal that Court's decision denying

his petition for a writ of habeas

corpus. (App. 3 )

JURISDICTION

Jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1),

to review the judgment of the United

States Court of Appeals for the Second

3

‘Circuit. This judgment was dated and

entered on March 1, 1984 (App. 1A ).

Justice Thurgood Marshall on May 29,

1984 extended petitioner's time for

filing a petition for writ of

certiorari to and including June 29,

1984. (App. 1 ).

STATUTORY PROVISIONS INVOLVED

This case involves Rule 52(b) of

the Federal Rules of Civil Procedure

and Rules 4 and 5, Rules Governing

Section 2254 in the United States

District Courts.

Civil Rule 52(b)

When findings of fact are made

by the court without a jury, ... the

sufficiency of the evidence ... may

thereafter be raised

4

Rule 4 - Rules governing Section

2254 cases in the United States

District Courts.

if it plainly appears ... that

the petitioner is not entitled to

relief ... the Judge shall make an

order for its summary dismissal

otherwise the Judge shall order the

respondent to file an answer or

other pleading.

Rule 5 = Rules governing Section

2254 cases in the United States

District Courts.

The answer shall respond to

the allegations of the petitioner

shall state whether the petitioner

nas exhausted his state remedies

5

The court on its own motion

may order that ... transcripts be

furnished

STATEMENT OF CASE

The petitioner, William M. Paar,

is pro se and has been since the

time he filed for writ of habeas

corpus under Title 28 U.S.C. § 2254.

The petitioner was incarcerated

under F 102-80 as a result of a

finding by the Family Court, County

of Suffolk, State of New York, that

he was in contempt for refusing to

make child support payments to the

Suffolk County Department of

Social Services. On November 4,

1982 the Honorable Jacob Mishler,

6

District of New York issued an

order to show cause ordering the

Attorney General to respond to

petitioner's application for a writ

of habeas corpus and submit any

available transcript and record

to the Court at the time of filing

such return. In an order dated

November 29, 1982 the Honorable

David F. Jordan, Magistrate, amended

the show cause order dated November

4, 1982 by adding the name of the

Suffolk County Attorney to that of

the Attorney General. Neither

the Attorney General of the State

f New York nor the Suffolk

County Attorney answered the show

= - - .- | I ~

der dated November 4, 1982

7

in conformance with Rule 5 of the

Rules Governing Section 2254 cases

in the United States District Courts.

The District Court never enforced

its jurisdiction under Rule 4 of the

Rules Governing Section 2254 cases in

the United States District Courts.

The Court of Appeals did not

have benefit of the answer to the

order to show cause as provided by

Rule 5 of the Rules Governing

Section 2254 cases in the District

Courts when it denied petitioner's

certificate of probable cause

without comment.

8

REASON FOR GRANTING THE WRIT

The Second Circuit's

Affirmation of the District

Judge's denial of a certificate

of probable cause lacks suf-

ficiency of evidence to support

such findings and is therefore

subject to review under

Rule 52(b) of the Federal

Rules of Civil Procedure.

Rule 4 of the Rules Governing

Section 2254 cases in the United

States District Courts gives the

District Court Judge great latitude

in determining that evidence

necessary to proper disposition

f the case, and states in part

below:

"If it plainly appears from

the face of the petition and

any exhibits annexed to it

that the petitioner is not

entitled to relief in the

District Court, that the

Judge shall make an order

9

for its summary dismissal

and cause the petitioner

to be notified. Otherwise

the Judge shall order the

respondent to file an answer

or other pleading within the

period of time fixed by the

Court or to take such other

action as the Judge deems

appropriate."

Further, the advisory committee

note to Section 2254, Rule 4

States in part:

"It has been suggested

that an answer should be

required in every habeas

proceeding, taking into

account the usual

petitioner's lack of legal

expertise and the important

functions served by the

return. See Developments

in The Law - Federal Habeas

Corpus, 83 Harv. L. Rev.

1038, 1178 (1970)."

10

The District Court having

determined that an answer is

necessary to the proper disposition

of the case, Rule 5 is specific in

its requirements oi the respondent

and states in part:

"The answer shall respond

te the allegations of the

petition. In addition, it

shall state whether the

petitioner has exhausted

his state remedies including

any post-conviction remedies

available to him under the

Statutes or procedural rules

of the st ace and including

also his right of appeal

bsoth from — judgment of

conviction and from any

adverse 31 epee: or order

n the post- -conviction

:

proceeding. The answer

shall indicate what

transcripts (of pretrial,

trial, sentencing and post-

conviction proceedings) are

availabie, when they can be

Turnished, and also what

proceedings have been

recorded and not transcribed."

11

Further, the advisory

committee note Section 2254, Rule

5 states in part:

"The answer plays an

obviously important role

in a habeas proceeding:

The return serves

several important

functions; it permits

the Court and the parties

to uncover quickly the

disputed issues; it

may reveal to the

petitioner's attorney

grounds for release

that the petitioner

did not know; and it

may demonstrate that

the petitioner's

claim is wholly

without merit.

Developments in the Law-

Federal Habeas Corpus,

83 Harv. L. Rev. 1083,

1178 (1970)."

The District Court having

determined that under Rule 4 that

12

an answer is necessary , the

importance of the evidence

required by Rule 5, and its

relevance to the proper adjudica-

tion of the petition for habeas

corpus surely cannot be denied.

Petitioner represents that the

District Court's refusal of a

certificate of probable cause and

the Court of Appeals' affirmation

in the absence of the answer as

required by Rule 5 of the Rules

Governing Section 2254 cases does

ot meet the sufficiency requirement

of Rule 52(b) of the Federal Rules

of Civil Procedure and constitutes

13

two Court Rule, Graver Tank and

Mfg. Co. v. Linde Air Prods. Co.

(1949) 336 US 271, 275, 69 S. Ct.

535, 93 L. ed 672.

Respectfully submitted,

William M. Paar

Pro Se

c/o S. Mackin

311 East 54th Street

New York, New York 10022

(212) 751-6182

APPENDIX

INDEX

APPENDIX

Order Extending Time to

File Petition for Writ

OE BOPCAOTETS c 6 6 Hbe See ceeseuce

Decision = United States

Court of Appeals for

the Second Circuit..... 7 ee

Order Denying Certificate

of Probable Cause = District

PSs Sec eWeth ed eueeen ae ees ce

Memorandum of Decision and

Order - District Court....... .

rere eras ci ehesies

1A

App. 1

SUPREME COURT OF THE UNITED STATES

No. A-965

WILLIAM M. PAAR,

Petitioner,

Ts

JOHN P. FINNERTY

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

counsel for petitioner(s),

IT IS ORDERED that the time for filing a

petition for writ of certiorari in the

above-entitled cause be, and the same is

hereby, extended to and including

June 29, 1984.

/s/Thurgood Marshall

Associate Justice of

the Supreme Court of

the United States

Dated this 29th

day of May , 1984.

App. 1A

PRO SE UNITED STATES COURT OF

APPEALS

83-2346

2/28 FOR THE

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse, in

the City of New York, on the lst day of

March, one thousand nine hundred and

eighty-four.

William M. Paar,

Vie

John P. Finnerty and ano.,

83-2346

a *%

Appellees.

A motion having been made herein by

538 - od

appellant pro se for a certificate of

~ 9 ** - °

orcebable cause, for leave to proceed in

Pa]

forma pauperis, for the assignment of

counsel

Upon consideration thereof, it is

Ordered that said motion be and it

herehy ad der? eda.

. s “7-2 ~ ym.» oe

a> 0 asi Sauiman

UNITED STATES DISTRICT COURT App. 2

EASTERN DISTRICT OF NEW YORK

ee a a ww ww we x

WILLIAM M. PAAR, CV 82-3238

Plaintiff,

Memorandum

-against- of

Decision

JOHN P. FINNERTY, Sheriff, and

ROBERT ABRAMS, N.Y.S. Attorney Order

General,

November 38,

Defendants. 1983

MISHLER, District Judge

Plaintiff's application for a

certificate of probable cause pursuant to

28 U.S.C. § 2253 is denied. The claim is

frivolous.

The Clerk of the Court is directed

to forward the file to the Clerk of the

Court of Appeals for review by a circuit

judge.

U.S.D.d.

Jacob Mishler

App. 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

me we oe ow oe ww oe eee ee x

WILLIAM M. PAAR, CV 82-3238

Plaintiff,

Memorandum

-against- of Decision

and Order

JOHN P. FINNERTY, Sheriff, and

ROBERT ABRAMS, New York State

Attorney General,

September

Defendants. 12, 1983

— ee ee ee ee ee me ee ee ee ee ee ee ee ee ee ee ee ee es ee ee ee ae ee es x

WILLIAM M. PAAR,

Plaintiff, Pro Se

c/o S. Mackin

311 East 54th Street

New York, New York 19022

HONORABLE DAVID J. GILMARTIN

SUFFOLK COUNTY ATTORNEY

Veterans Memorial Highway

Hauppauge, New York 11788

Chris Termini, Assistant

County Attorney

MISELER, District Judge

This is a motion by plaintiff,

April 29, 1983 pursuant to the court's

memorandum of decision and order of the

Same date. The memorandum of decision

App. 3

Page 2

and order of the court dismissed Mr. Paar's

petition for a writ of habeas corpus

because, since Mr. Paar had been released

from custody and was under no other

restraint, the petition was moot.

Petitioner's motion asserts no

ground for vacating the aforesaid

judgment. The motion to vacate the

judgment is denied,2/ and it is

SO ORDERED.

U.S.D.J.

Jacob Mishler

App. 3

Page 3

FOOTNOTES

Petitioner moves for renewal or

reconsideration of the judgment.

Because the judgment is final, a

motion for renewal or reconsidera-

tion is not available. We consider

petitioner's motion as one to

vacate the judgment.

Magistrate Jordan's order for a

status conference on December

19, 1983 is hereby vacated pursuant

to the dismissal of petitioner's

motion.

|

)

F

:

App. 4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA ex rel. No.

82 CV

WILLIAM M. PAAR 3238

Petitioner, ORDER TO

SHOW

-against- CAUSE

JOHN P. FINNERTY-SHERIFF,

ROBERT ABRAMS, NYS ATTY.

GENERAL

Respondent.

Upon the petition for issuance

of a writ of habeas corpus, dated

Oct. 23, 1982 a copy of which is

attached, it is ORDERED that:

(1) The Attorney General of

the State of New York, as attorney

for the Respondent, show cause before

this Court by the filing of a return

to the petition, why a writ of

App. 4

Page e

habeas corpus should not be

issued;

(2) Within ten (10) days

of receipt of this order, the

Attorney General of the State

of New York shall serve a copy

of his return on che petitioner

herein and file the original thereof,

with proof of such service, with

the Clerk of this Court;

(3) If the transcript of

the trial be available, the

Attorney General of the State of

New York is directed to submit

such transcript and record to

this Court at the time of the

iling of such return;

App. 4

Page

(4) Petitioner, within '

ten (10) days of the receipt by

him of a copy of the return of the

Attorney General, shall file his

reply, if any, with the Clerk of

this Court, in duplicate;

(5) Service of a copy of

this order shall be made by the

Clerk of this Court by mailing a

copy thereof, together with a

copy of the petition, to the

Attorney General of the State of

New York, 80 Centre Street, New York,

N.Y. 10013 and by mailing a copy of

this order to the petitioner.

Date: Uniondale, New York

November 4, 1982

UsdeWeds

Jacob Mishler